27 November 2019
In November 2019 the Court of Justice of the European Union (the CJEU) issued two landmark judgments concerning the independence of the judiciary in Poland (case C-192/18 and joined cases C-585/18, C-624/18 and C-625/18). The first case concerned the provisions lowering the retirement age of judges and public prosecutors and the second was on the newly created Disciplinary Chamber of the Supreme Court.
In the first judgment of 5 November 2019, the CJEU considered the amendments to the law on the organisation of ordinary courts, which lower the retirement age of ordinary court judges and prosecutors, whilst allowing the Minister of Justice to decide on the prolongation of their active service. The provisions also set a different retirement age depending on gender. The Court found them to be contrary to EU law.
The Polish law at stake lowered the retirement ages for judges and public prosecutors to 60 years for women and 65 years for men — down from 67 years for both sexes. The CJEU found that by establishing a different retirement age for men and women who were judges or public prosecutors, Poland infringed Article 157 TFEU, under which each Member State must ensure the principle of equal pay for male and female workers for equal work, as well as Directive 2006/54 on equal treatment in occupational social security schemes.
Furthermore, the Court highlighted that the ordinary Polish courts might be called upon to rule on questions connected with EU law, and they must therefore meet the requirements inherent in such protection. In order to ensure that they are in a position to offer that protection, maintaining their independence is essential. Thus, the Minister of Justice’s power to decide whether individual judges can continue past the newly stipulated retirement age does not comply with the principle of irremovability. The Court declared that Poland has therefore failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU (the principle of the effective judicial protection of individuals’ rights under EU law).
This is already the second judgment concerning the effect of the lowering of the retirement age of the judges on the independence judiciary. In the first one (C-619/18), issued on 24 June 2019, the CJEU ruled that the Polish 'Law on the Supreme Court', which lowered the retirement age of judges of the Supreme Court, is contrary to EU law and breaches the principle of the irremovability of judges and thus that of judicial independence.
In 2018 the Polish government withdrew from the regulations lowering the retirement age of judges of the Supreme Court, as well as ordinary court judges and public prosecutors, in order to prevent the judgment from being issued. In the government’s view the CJEU should not have rendered judgment as it “concerns a historical condition which does not reflect the current provisions”. Currently the retirement age has been equalised and the extension of active service of the judges in ordinary courts is now decided by the National Council of the Judiciary (so-called KRS – Krajowa Rada Sądownictwa).
Furthermore, on 19 November 2019 the Court issued its preliminary ruling on questions relating to the independence of the newly created Disciplinary Chamber within the Polish Supreme Court, which has the power to discipline judges both for their conduct and for the content of their rulings. The judges of this chamber are appointed by the President of the Republic on a proposal of the National Council of the Judiciary - the KRS. It is important to highlight that under the amendment to the Law on the National Council of the Judiciary and certain other laws, enacted by the Law of 8 December 2017, the Lower Chamber of the Polish Parliament now elects the 15 members of the KRS who are judges (of a total of 25 members). Formerly, these members were elected by the general assembly of judges of all levels.
The first question concerned whether the judges adjudicating in the Disciplinary Chamber are independent as understood by EU law, and consequently whether the requirements of the EU principle of effective judicial protection (Article 19 (1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union) have been met in cases adjudicated by this chamber where there is a question of EU law. Further, the Labour and Social Insurance Chamber of the Supreme Court also asked whether, if these standards were not fulfilled, it should disregard national regulations that require cases to be examined by the Disciplinary Chamber.
The Court confirmed that Article 47 of the Charter of Fundamental Rights and Article 19(1) TEU were applicable and held that the requirement that courts be independent formed part of the essence of the right to effective judicial protection and the fundamental right to a fair trial. It further noted that the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are, inter alia, specific factors which must be examined in order to assess whether the Disciplinary Chamber offers sufficient guarantees of independence.
The Court found that it was necessary for the referring court to ascertain whether the Disciplinary Chamber is independent in order to determine whether that chamber has jurisdiction to rule on cases where judges of the Supreme Court have been retired. It is also for the referring court to ascertain whether or not the KRS offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant factors relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role.
As the above-mentioned standards for judicial independence should apply to all judges who can potentially apply EU law, they are crucial to ensure access to justice in environmental matters as most of the environmental legislation in Poland originates in EU law. Moreover, the enforcement of theses judgments will also ensure Poland’s compliance with the Aarhus Convention, which in its Article 9 (4) requires access to independent and impartial courts.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.